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Controversy Swirls Around Changes in GPLv3

While the move to block deals like the one between Novell and Microsoft will not prevent Novell from using existing GPLv2 software in its present versions, it could have a chilling effect on the company going forward.

As the Free Software Foundation prepares to release the third discussion draft on the GNU General Public License on March 28, the question being asked is whether the move to block future deals like the controversial one between Microsoft and Novell will forever doom the license.

"If any entity that distributes the software arranges to protect a particular group from patents regarding that software, it must protect everyone. This mends the loophole exploited in the Novell-Microsoft agreement without being discriminatory or unfair," Perens said.

But Linux-Watch editor Steven Vaughan-Nichols, who has talked to many lawyers about this, reports that "their informal consensus is that getting clauses into GPLv3 that will block similar deals from happening in the future, while avoiding cutting legitimatize software patents uses off at the knees, is going to be almost impossible."

But, to Perens, therein lies the key difference between them and the FSF, which he says "doesnt really see any legitimate uses for software patents. They dont have to separate the good guys from the bad guys in that regard, because they think theyre all bad guys.

"This is consistent with GPLv2, which comes with a patent license for everyone in the world to use your patented algorithm in any GPL software they like, once you distribute GPL code using that algorithm," Perens said.

Asked how he thought those large patent holders that were also active members of the open-source community, like IBM, HP and Novell, would react to that assessment, Perens said the question was whether GPLv3 would force them to give away so much of their patent rights that it [GPLv3] would be untenable for them to use.

"I think it will allow them to preserve their accustomed patent rights regarding any software that isnt using the GPL, which is pretty much what they had before," he said.

So, for Perens, while this change will not prevent Novell from using existing GPLv2 software in its present versions, it could "freeze them in amber as an example of the state of software in early 2007, as the rest of the free software community and Linux distributions move into the future," he said.

It was also important that the GPL "continues to grow just to stand still. To freeze on one version would act to erode its protections over time," Perens said, citing as an example the loophole constructed by Novell and Microsoft attorneys, which will now be closed.

"That loophole was so new to us that the first two public drafts of GPL3 contained no provision to repair it," he said.

But ACT (the Association for Competitive Technology), which has previously been accused of being an association founded and cultivated solely to protect Microsofts interests in Washington, views the issue differently.

ACT expects the draft to include language to "attack" patent deals like the one recently struck by Microsoft and Novell. Additionally, the new draft is expected to force TiVo, cell phone makers and other device companies that use open-source software to allow the "hacking" of those specific devices, and to continue to provide services and warrantees for the hacked devices.

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